Metropolitan News-Enterprise


Thursday, June 4, 2020


Page 3


Court of Appeal:

‘Agreement to Keep Property Separate’ Was Not ‘Prenup’

Opinion Says Contract Which Merely Made Reference to Prospect of Becoming Registered Domestic Partners Was Not ‘in Contemplation of Marriage’


By a MetNews Staff Writer


An “Agreement to Keep Property Separate” executed by two unmarried persons who were then living together and later wed was not an enforceable prenuptial contract given that it was not entered into in contemplation of marriage, Div. Two of the First District Court of Appeal held yesterday, rejecting the contention that a reference in the instrument of the prospect of entering into a domestic partnership was sufficient.

Business consultant Kymi Armour, who prepared the agreement, signed it in December 2000. Businessman/vocalist Bryan Matheson added his signature in October 2001.

The agreement says:

“…(if we register as domestic partners in a community…the law requires us to be responsible for each other’s basic living expenses, [and] we agree to assume the minimum level of reciprocal responsibility required by the law).”

Armour and Matheson were married in October 2002, and their marriage was dissolved in 2011. Alameda Superior Court Judge Lupe Garcia, in ruling in 2018 on ownership of property, found the agreement to be valid.

He denied Matheson reimbursement for funds he allegedly expended in paying off a mortgage on an Oakland home that Armour purchased before marriage based on his failure to establish by a preponderance of the evidence that moneys he paid Armour were devoted to that specific purpose, rather than their general living expenses.

Richman’s Opinion

Justice James Richman, in yesterday’s opinion, declared that there was no enforceable premarital agreement. He wrote:

“Since the agreement was unenforceable, all payments made on the mortgage on the Shafter property while the parties were married were presumptively made with community property, whether the payments came from Kymi’s or Bryan’s earnings….Therefore, the community is entitled to reimbursement of its pro tanto share of the value of the house….”

In finding the agreement was invalid, he pointed to Family Code §1610(a) which provides:

“ ‘Premarital Agreement’ means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.”

Ex-Wife’s Contention

He rejected Armour’s argument that although those engaged in a domestic partnership did not have the same rights in 2001 that married couples did, nowadays “whether parties are subject to the Family Code by marriage or domestic partnership is a distinction without a difference under California law,” and it should not matter whether their agreement made reference to marriage or a domestic partnership.

Richman quoted the portion of the agreement that refers to domestic partnership and commented:

“Domestic partnership, not marriage.”

The jurist said that “conspicuously missing” from the agreement “is any reference whatsoever to any marriage—contemplated or otherwise.”

No Assumption

He remarked:

“As Kymi’s brief argument concedes, she does not even contend the agreement was made in contemplation of marriage. Rather, she asserts that because the agreement mentions the possibility the parties will register as domestic partners in the future and because current law provides that domestic partners and spouses have similar rights, one should simply assume that the parties’ agreement was made in contemplation of marriage. By no means.”

The case is Marriage of Matheson & Armour, A154210.


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